If you regularly watch legal television shows or movies, you are probably familiar with the phrase “circumstantial evidence”. The phrase is almost invariably used in legal dramas to imply that evidence is weak, or even to imply that circumstantial evidence is not true evidence at all. For example, in a criminal courtroom drama you may hear something along the lines of, “Ladies and gentlemen of the jury, you must find my client not guilty because the prosecution has only offered circumstantial evidence that he committed murder.”

The legal reality is totally different; circumstantial evidence or “indirect evidence” is extremely common and it can be just as powerful as direct evidence when proving a case. In fact, one of the first things you will be instructed as a juror is, “As far as the law is concerned it makes no difference whether evidence is direct or indirect…” (California Civil Jury Instruction 202 “Direct and Indirect Evidence”).

So what is circumstantial evidence? For starters, the counterpart of circumstantial evidence, called “direct evidence”, is evidence that can prove a fact by itself, without the juror having to rely on any other fact or inference. To illustrate imagine that a lawyer asks a witness during trial whether or not it rained in Santa Cruz on Monday, October 23, 2017, and the witness responds, “I saw it rain in Santa Cruz on October 23, 2017. I saw water falling out of the sky and felt it land on my face.” The witness personally saw the rain and felt it land on him. No inference was necessary; it’s direct evidence of rain.

Circumstantial evidence is indirect and requires a reasonable or logical inference or deduction. To illustrate circumstantial evidence imagine the same question about whether or not it rained in Santa Cruz on Monday, October 23, but the witness responds, “I didn’t personally see it rain because I was working inside all day. However, I saw my co-workers come into the office soaking wet with umbrellas and rain jackets. When I drove home that evening, there were puddles on the road.” The witness just provided circumstantial or indirect evidence that it rained because the witness did not personally see it rain. However, the witness saw other people with umbrellas, rain jackets, and saw puddles on the ground; all logical and reasonable deductions that it had rained that day.

Circumstantial evidence is extremely common, and is probably far more common than direct evidence in most cases. For example in an employment pregnancy discrimination case an employee will probably never be able to offer direct evidence of an employer’s discriminatory motive, (i.e., the business owner’s testimony, in court, “Yes. I fired Lucy because she’s pregnant! I can’t stand pregnant women!”) However, the same employee may be able to provide lots of powerful circumstantial evidence of discrimination, such as the short proximity of time between Lucy’s termination and the employer’s initial awareness of the pregnancy, the employee’s positive performance history and history of promotions, the employer’s deviation personnel policies allowing pregnancy leave and prohibiting discrimination, and testimony from other terminated pregnant employees who were also fired by the same boss; all are powerful and circumstantial forms of evidence. Don’t balk if you hear evidence characterized as circumstantial.

2. Hearsay Is Often Times Admissible Evidence

Most non-lawyers understand that there is a legal concept called “hearsay” and understand there is an evidentiary prohibition against admitting hearsay into evidence. While it is true that there is a general prohibition against hearsay, there are dozens of exceptions to the general rule which allows hearsay as evidence. In fact, the exceptions are so numerous and so common that the exceptions to hearsay nearly swallow up the rule against it.

The topic of hearsay evidence is a complicated one, however, the legal definition is simple “Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted”. In other words, 1) the statement being offered as evidence was said out of court, and 2) the statement is now being offered in court as factually true.

To illustrate hearsay, imagine the same hypothetical as earlier, where a lawyer asks a witness during trial whether or not it rained in Santa Cruz on Monday, October 23, 2017, and the witness responds, “I didn’t personally see it rain because I was working inside all day. However, my co-worker came into the office told me that it had rained all morning.” Objection! Hearsay! The witness has offered an out of court statement from his co-worker (“that it had rained all morning”), which is now being offered for the truth of the matter asserted, (that it rained in Santa Cruz on Monday, October 23, 2017).

Remember, however, that there are dozens of exceptions to the rule against hearsay. Just because something is hearsay, do not assume that an exception would not apply and that it would still be inadmissible in court. The same statement could be admitted into evidence under one or more exceptions to the rule against hearsay.

3. Testimonial Evidence Is Powerful Evidence

There are several categories of evidence in California including, documentary evidence (writings), demonstrative evidence (demonstrations), real evidence (objects), and testimonial evidence (statements given under oath with personal knowledge of the subject matter).

Terminated employees typically do not have access to evidence other than their own testimony about what happened. This is because terminated employees are usually terminated abruptly and are instantly denied access to the emails, calendars, notes, and other documents that refute their employer’s allegations. However, many employees incorrectly assume that their own testimony is inherently inadmissible and not helpful. An employee’s own testimony about their performance or the circumstances of their termination can be extremely powerful evidence. Just because you are terminated does not mean that you lack evidence to prove your case.

Similarly, once a lawsuit is filed employees have access to a very powerful right called “discovery” which is the court-compelled sharing of relevant information. Thus, terminated employees regain the right to relevant documents and other evidence once a lawsuit has been filed.

Brian Mathias represents exclusively employees in all aspects of California employment law. Do you have a question about California employment law or the evidence required to prove a case? Contact www.BrianMathiasLaw.com